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J.W. v. B.B.5/26/2005
Before Deininger, P.J., Vergeront and Higginbotham, JJ.
We granted a physician leave to appeal two orders that compel him to respond to certain discovery requests from the plaintiffs in these two medical malpractice actions. The physician claims the trial court erred when it ordered him to disclose his sexual orientation, his employment history and any prior complaints against him involving conduct similar to what the plaintiffs have alleged in this action. We conclude the trial court did not erroneously exercise its discretion in ordering disclosure of the physician's employment history and prior complaints regarding his practice of medicine. We also conclude, however, that the court erred in ordering the physician to disclose his sexual orientation because it is not relevant to the issues in this case and is not reasonably calculated to lead to the discovery of admissible evidence.
BACKGROUND
The plaintiffs filed a complaint alleging the physician was "negligent in his care and treatment" for performing digital-rectal prostate exams on them during pre-employment medical examinations. They also alleged the physician failed to obtain their informed consent before performing the exams. The plaintiffs asserted that the physician told them the prostate exams were required for their employment physicals.
During a deposition of the physician, his attorney objected to the following questions put by plaintiffs' counsel, stating as grounds that the questions were irrelevant and not reasonably calculated to lead to the discovery of admissible evidence:
Are you aware of any complaints that any individuals made against you while you were at [a former employment] alleging inappropriate touching?
Why did you leave [employment with another health care provider]?
What is your sexual orientation, doctor?
On advice of his counsel, the physician did not answer these questions.
The plaintiffs filed a motion to compel discovery regarding the physician's sexual orientation, prior complaints against him and his employment history. The circuit court, citing a case that upheld the admission of evidence of a criminal defendant's homosexuality as being probative of his motive for committing the charged crime, reasoned that disclosure of the physician's sexual orientation could lead to evidence of his motive for conducting the digital-rectal exams. The court did not separately discuss the request for information regarding past complaints against the physician and his employment history. The court explained that it was not ruling on the admissibility of any of the requested information, only that the physician must respond because his responses might lead to the discovery of admissible evidence. The court also directed the parties to submit "a good, strong protective order on any answers that might be compelled."
The court entered orders requiring the physician to disclose: (1) his "sexual orientation"; (2) "other complaints by inmates, clients, patients, or examinees, to the effect that touched them inappropriately or unnecessarily did rectal or prostate exams"; and (3) "the reasons left previous professional employment." We granted the physician's petition for leave to appeal the orders compelling discovery. See WIS. STAT. ยง 808.03(2).
ANALYSIS
Whether to compel a party to disclose information requested in discovery is committed to the circuit court's discretion. See Earl v. Gulf & W. Mfg. Co., 123 Wis. 2d 200, 204, 366 N.W.2d 160 (Ct. App. 1985). Properly exercised discretion involves "a statement on the record of the trial court's reasoned application of
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